Unfair Competition Basics: Terms of Art … What is a Trade Secret?

There is an endless variety of types of trade secrets and confidential information. (On the question of the significance of the distinction, see Trade Secret or Confidential Information?, posted on June 4, 2010.) At their core, trade secrets and confidential information are any secret information. They may include customer and vendor information, products, product development, business strategy, financial information, customer or employee lists, technical data, design, pattern, formula, computer program, source code, object code, algorithm, subroutine, manual, product, specification, or plan for a new, revised or existing product, or any business plan, marketing, financial or sales order, or the present and future business or products.

On the other side of the equation, trade secrets do not include information or methods generally known within an industry. Thus, general concepts, combined with an employee’s talent, are not trade secrets – although public information acquired through extensive effort and not generally known without such efforts, can be a trade secret.

Certain specific types of information have received particularized treatment, and are therefore worth highlighting. They are as follows:

Customer Lists/Information: Customer lists can, but will not always, constitute protectable confidential information. While a naked customer list is not likely to be protected in the absence of special circumstances, the more information about the customers that is included in the list, the more likely it will be protected, provided that such information is maintained in confidence.

Financial/Business Information: General business information and routine data are not normally protectible, although specific information can be.

Software: While software may be subject to other protections (copyright, in particular), it may also be protected as a trade secret.

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